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Byerwen Coal Pty Ltd v Colinta Holdings Pty Ltd (No 2)[2016] QLC 9

Byerwen Coal Pty Ltd v Colinta Holdings Pty Ltd (No 2)[2016] QLC 9

LAND COURT OF QUEENSLAND

CITATION:

Byerwen Coal Pty Ltd v Colinta Holdings Pty Ltd & Anor (No 2) [2016] QLC 9

PARTIES:

Byerwen Coal Pty Ltd

(applicant)

 

v

 

Colinta Holdings Pty Ltd

(first objector)

and

Glencore Coal Queensland Pty Ltd

(second objector)

FILE NO/s:

MRA423-14

MRA424-14

MRA425-14

MRA426-14

DIVISION:

General Division

PROCEEDING:

Application by the appellant reopening of the hearing of MLA 70434 (MRA426-14)

DELIVERED ON:

10 February 2016 Ex tempore

DELIVERED AT:

Brisbane

HEARD ON:

10 February 2016

HEARD AT:

Brisbane

MEMBER:

PA Smith

ORDER/S:

In the matter of MRA426-14 relating to the second respondents objection to MLA 70434 (‘ML70434 Mining Lease Objections Hearing’):

  1. The Applicant’s application filed 16 December 2015 to reopen the Mining Lease Objections Hearing (Application) is refused.
  1. That order 5 of the Land Court Orders made on 7 December 2015 be made final.
  1. That the Reasons and Decision of the Land Court made on 7 December 2015 in the Mining Lease Objections Hearing (‘Decision’), together with all material that the Land Court must forward to the Minister pursuant to s 269(1) of the Mineral Resources Act 1989 (Qld), including:
  1. (a)
    subject to Order 4, the Application, an Affidavit of Daniel Gerard McCarthy affirmed on 8 February 2016, an Affidavit of Toby Prior affirmed on 8 February 2016, an Affidavit of Christopher Wallin sworn on 8 February 2016, an Affidavit of Jordan Bachmann sworn on 11 February 2016, an Affidavit of Giselle Marguerite Kilvert affirmed on 10 February 2016  and Exhibit 1 in the Application;
  1. (b)
    the submissions filed by the Applicant and the Second Respondent in relation to the Application; and
  1. (c)
    separately:
  1. (i)
    the transcript of the hearing of the Application on 10 February 2016 recording the reasons of the Land Court (from T1-64 to T1-70);
  1. (ii)
    the transcript of the hearing of the Application on 10 February 2016 from T1-1 to T1-63; and
  1. (iii)
    subject to order 4, the restricted parts of the transcript of the hearing of the Application on 10 February 2016;

be provided, together with the Decision, to The Honourable The Minister for the Department of Natural Resources and Mines.

  1. That Exhibit TP2 to the Affidavit of Toby Prior sworn 8 February 2016 and filed 8 February 2016 and the restricted parts of the transcript referred to in order 3(c)(iii) be provided to the Minister in a sealed envelope marked “restricted and only to be opened by the Minister and any persons delegated by the Minister for the purpose of considering the application for the grant of MLA70434” and is otherwise to be kept restricted by all parties including the Minister.

CATCHWORDS:

ENVIRONMENT AND RESOURCES – application for mining lease – objections – functions and powers of Land Court – Mineral Resources Act 1989 (MRA)

COURT PRACTICE AND PROCEDURE – Land Court – application for reopening of MLA hearing – factors to be considered

COURT PRACTICE AND PROCEDURE – Land Court – role of Court in making recommendation to Minister – administrative not judicial task

Environmental Protection Act 1994

Mineral Resources Act 1989

Uniform Civil Procedure Rules 1999

BHP Billiton Mitsui Coal Pty Ltd v Isdale & Ors (2015) QSC 107

Byerwen Coal Pty Ltd v Colinta Holdings Pty Ltd [2015] QLC 44

APPEARANCES:

JK Chapple of Counsel for the applicant

DG Clothier QC for the objectors

SOLICITORS:

S McNee, General Counsel for the applicant

Allens for the objectors

  1. [1]
    I have before me an application brought by Byerwen Coal to reopen the hearing of the application for its mining lease application 70434 (MLA 70434) flowing from orders which I delivered on 7 December 2015. This matter is both technical and unusual, and of broad ambit. It is also one in which, under usual circumstances, it would be, perhaps, appropriate to give further consideration to and provide carefully worded written reasons. However, the simple fact of the judicial circumstances I find myself in at the moment, with a large number of highly urgent and important matters, is that I have no time left in my judicial time, either day or night, to deal with this matter in a written sense. Further, I do not see that my conclusions will have altered; merely the clarity of my reasoning. I express my apologies for the disjointed nature of these reasons which circumstances dictate should occur today.
  1. [2]
    The background to the situation can be summarised this way: there is an area of MLA 70434, which I will now refer to as area A, which is located to the central north-eastern part of the MLA. In making my recommendations on 7 December 2015, I indicated that, at that time, I intended to make orders that area A, by recommendation to the Minister, be excluded from the operative area of MLA 70434. I did this on the basis that, having considered all of the evidence before me, which was subject to objections by the second respondent, Glencore, I could see no good reason for the grant of the mining lease over area A. An underlying factor in considering that was whether the size and shape of the MLA was appropriate and whether there were coal resources within the application area. The material that I had left me in considerable doubt as to the existence of a recoverable coal resource within area A. Also the location of area A, being bordered by mining leases held by others and a road in a two-dimensional sense, makes it a matter where, if there were to be specific mining of that area, one would have expected evidence in the application hearing to have indicated what was intended for area A.
  1. [3]
    On the contrary, what was included for area A was originally part of infrastructure for the southern part of the Byerwen Project and that, prior to my recommendation being made, that infrastructure area was moved to the west of area A leaving me, for reasons which I set out in my decision of 7 December, with the view that there was no good reason, on the material I had, why area A should be included in the grant of MLA 70434.
  1. [4]
    I was concerned though that there may have been material in the vast quantities of information which is always received quite properly in MLA matters which indeed did show the intentions of the applicant with respect to area A in a direct sense. I say direct to indicate more than a vague intention to conduct mining operations, both underground and open-cut, and infrastructure within the boundaries of an MLA area. Were that all that was required, any applicant for any mining lease would have to do no more than say they were going to have infrastructure and mining and that would be the end of the inquiry as to size and shape. Certainly, the legislation, in my view, does require more than that. It is the onus of an applicant to establish that the size and shape of a mining lease is appropriate, irrespective of whether or not there are any objections to that part of the application, and in particular in a case such as this where I have before me an objection which brings into question competing land uses of Byerwen and Glencore over part of the very area I’m concerned with, being area A.
  1. [5]
    That sets out the background for what is before me in an application to now reopen. The application is supported by material, some of which is restricted, so for the purposes of this decision, which is important to be available on the public record, I will only make vague references to the overriding material, but the parties are to take it as read that I have taken full account of the material which is referred to as TP2, being restricted material.
  1. [6]
    One reading of the material before me gives an impression of an evolving mining plan being undertaken by Byerwen which clearly shows an intention post the removal of the proposed mining infrastructure from its moved position to an area further to the south as occurred with the approval of the Coordinator-General in mid-2015, thus opening up the area to the west of area A to potential exploitation of land which would otherwise be sterilised and, at the same time, of course, sterilising other land within the MLA application area which was otherwise open and available for exploitation.
  1. [7]
    In a way, the very existence of the Coordinator-General’s approval in July 2015 for the change in placement of the mining infrastructure of itself gives a reason for the court to reconsider its recommendations with respect to the application for MLA 70434 simply on the basis that areas which were taken to be exploited are now not going to be exploited, and areas which were sterile now will not be sterile, but perhaps that is an argument that we might never have.
  1. [8]
    I say that, though, because of the difficulty with the never-ending nature of a mining program which is in a theoretical stage and subject to much change, and Ms Chapple has very correctly pointed out, and the evidence clearly supports the fact that the Byerwen project, being a project for at least 50 years into the future, is, of course, one in which times will change; plans will change; and operations will change. That can be of no surprise to Glencore or this court and is completely consistent with Glencore’s own evidence as to the change in program that itself is experiencing in its Newlands mine operations and the areas to the south in the Suttor Creek pits.
  1. [9]
    That said, though, a few points are clear and should be made. I have little doubt on the material before me in the reopening that Byerwen was expanding the areas that it was dealing with in its mining plans to go and undertake a mining program under where the infrastructure had been to the west of area A. It is certainly open on the current material to say that it is only following the decision of 7 December 2015 that the logical consequence of extending a long wall from a face of a pit which is extending towards area A has come into the mind of Byerwen. That is not necessarily fatal in the jurisdiction of the Land Court although, at this juncture, I can say that I completely agree and adopt the submissions made by Mr Clothier QC for Glencore as to the improper nature of the application to reopen were this a court of normal jurisdiction acting with proceedings which have the finality of litigation as a core element of consideration of proceedings. But as has been pointed out by Ms Chapple, the Land Court is operating under a purely administrative scheme in considering this matter. Other considerations need to be taken into account in that regard, and those considerations are particularly relevant, in my view, in the way the Land Court exercises its jurisdiction in light of the decision in 2015 of the Supreme Court in BHP Billiton Mitsui Coal Pty Ltd v Isdale & Ors.[1] That decision confirmed the role of the Land Court in dealing with MLA applications as administrative in nature and not as part of proceedings for the purposes of the Land Court Rules insofar as those Rules related to making of orders under the Uniform Civil Procedure Rules 1999.
  1. [10]
    There is no doubt that the underlying purpose of the Mineral Resources Act 1989 (“MRA”) is the exploitation of the mineral resources of Queensland. That, of course, must be coupled with the provisions of the Environmental Protection Act 1994 for the proper environmental care in the management of those minerals. There are no environmental objections in this matter, so that can be put to one side.
  1. [11]
    In considering the proper exploitation of the minerals of Queensland, commercial interests have to be balanced in no more relevant of a case than this one, where I have competing interests over the same area of land by both Glencore and Byerwen. I do not believe it is necessary for the purposes of today to delve any further into the comments I have already made regarding the haul road and the registered access and other access that Byerwen has over its MLA area and exercised by Glencore at this stage, be it by way of a MRA right or by way of an agreement between Glencore and the underlying landholder, as is the case with the haul road in area A. I confirm, though, that I have all those considerations in mind and have taken them into account as I set out in my decision of 7 December 2015 in reaching my conclusions on this application today.
  1. [12]
    In effect, the court sees three ways in which this matter can proceed. One is to allow a full reopening of the matter with both Glencore and Byerwen being allowed liberty to give unlimited evidence with respect to area A, and we go around the merry-go-round again in this matter. Because of my time constraints that hearing could not take place until I expect July or August of this year, simply because other matters have already been formally set down before me during that time period.
  1. [13]
    The second course is to allow a reopening, but on the limited basis of the material that has been put before me for the hearing of this application, and to determine the matter on written submissions or perhaps cross-examination of the evidence of that material that is before me on that material alone, in order to in effect tweak the decision of 7 December with updated material without putting the parties to the expense of a further complex hearing. There are difficulties with that. It precludes the applicant from having full recourse to all material they may wish to have placed before the court to deal with this matter, and it also precludes the second objector, Glencore, from itself having its full rights, which I believe it would need to be able to put before the court as an objector with respect to area A.
  1. [14]
    The third option is to not allow the matter to be reopened now, but to have the matter sent to the Minister as it existed at 7 December 2015, and have the Minister make a decision on that material. There are two subparts to that course of action, however, as well. In providing the material to the Minister, it is the obligation of the Land Court, under the MRA, to provide the Minister with all material before the Land Court in making its decision. I have stayed the operation of the orders from 7 December 2015 for these applications to be made and taking off my hat as conducting judicial proceedings and putting on an administrative hat, it is, in some ways, difficult to see why the material that has been placed before me today should not properly be placed before the Minister as material that has been before the court under an MRA administrative process. That would immediately cause interest and difficulties, I believe, for the Minister in making his decision and would almost invariably, I would think if the Minister is properly considering the matter, lead to the Minister referring the matter back to this court as the legislation allows.
  1. [15]
    Alternatively, I can take the view that the matter was closed, in effect, as at 7 December if this application is refused and not provide the additional material to the Minister and leave it up to the parties themselves to make what representations they believe appropriate to the Minister. Because of the nature of the Land Court in MRA proceedings in conducting an administrative process to assist the Minister in determining whether or not a MLA should be granted and making recommendations to the Minister in that regard, I consider it appropriate out of the two alternatives in option 3 that I have just referred to that all material, including the material that has been placed before me today and these reasons be referred to the Minister, together with my decision of 7 December 2015. That leads to a number of conclusions, and I do so for these reasons. Had the court had the opportunity to effectively and efficiently deal with a reopening, that would have had an impact upon my discretion as to dealing with this matter immediately. However, given that I cannot deal with the matter, and it is only appropriate that, for as long as I am drawing breath and as a member of the Land Court that I deal with this matter, the matter would inevitably be adjourned for a period of six months were I to have a full reopening of a nature of which I have indicated.
  1. [16]
    Taking into account my view of the material that has been placed before me today, and, as I have indicated, my incapacity to deal with the matter over the next six months, and the administrative nature of the MLA and the full provisions of the MRA, I consider it appropriate to not allow the reopening of the case but to order that these reasons be provided to the Honourable Minister, together with the affidavit material and all submissions provided to the court today.
  1. [17]
    Specifically, that material includes the document referred to as TP2, which is a restricted document, and that document is to be provided to the Minister on the basis that it is provided to the Minister in a sealed envelope marked as restricted, and is only to be opened by the Minister concerned and any persons delegated by the Minister for the purpose of considering this matter, and that document shall only be used in accordance with the question of the grant of MLA 70434 and is to be kept restricted by all parties, including the Minister; otherwise than with respect to his consideration of this recommendation.
  1. [18]
    Insofar as it is necessary, the preceding paragraph should be made an order of this court and set forth in that form to the Minister.
  1. [19]
    I anticipate the likelihood that this matter will go around the merry-go-round and come back to the court by way of referral from the Minister, but that is not necessarily the case, and it has also been part of my consideration of this matter. It may be that the Minister will have the benefit of fulsome submissions and material from both parties, which the Minister will consider sufficient given the reasoning which I have set out in my recommendation of the 7 December 2015 for the Minister to feel confident in making a full decision in this matter in spite of the difficulties with respects to area A.
  1. [20]
    On the other hand, it may be that the Minister is so concerned about issues relating to area A that the Minister sees a need to refer the matter back to the court. Those, though, are matters not for my determination. They are properly matters to be considered on the grant of the MLA, so I say nothing further in regard to that.
  1. [21]
    My final comment is this, and that is that I understand and apprehend the frustrations, perhaps, of both parties with respect to the way the processes under the MRA proceed. In my view, the current circumstances of an administrative process being undertaken within a veil of what has previously been understood to be proceedings before the court has had grave ramifications on the manner in which the Land Court has gone about its business and its recommendation powers.
  1. [22]
    For all intents and purposes, parties appearing before the Land Court believe they are appearing before a court. Particularly for parties who are unrepresented, the distinctions between an administrative process and a court process are opaque at best, or a black art most likely. I consider this as a matter that, although it did receive some legislative consideration by the government, for which I am, of course, grateful as a member of the court, in having my protection afforded to these matters clarified from a personal liability basis, there remains the question, which is a live question in this court, as to the power to award costs in these form of matters; as to what proceedings are; as to how these matters can be properly conducted; and that is a state of affairs which, in a progressive state such as Queensland, is very unfortunate, and something to which it would perhaps be appropriate for the Minister, and indeed, the Parliament, to give further consideration.

Orders

In the matter of MRA426-14 relating to the second respondents objection to MLA 70434 (‘ML70434 Mining Lease Objections Hearing’):

  1. The Applicant’s application filed 16 December 2015 to reopen the Mining Lease Objections Hearing (Application) is refused.
  1. That order 5 of the Land Court Orders made on 7 December 2015 be made final.
  1. That the Reasons and Decision of the Land Court made on 7 December 2015 in the Mining Lease Objections Hearing (‘Decision’), together with all material that the Land Court must forward to the Minister pursuant to s.269(1) of the Mineral Resources Act 1989 (Qld), including:
  1. (a)
    subject to Order 4, the Application, an Affidavit of Daniel Gerard McCarthy affirmed on 8 February 2016, an Affidavit of Toby Prior affirmed on 8 February 2016, an Affidavit of Christopher Wallin sworn on 8 February 2016, an Affidavit of Jordan Bachmann sworn on 11 February 2016, an Affidavit of Giselle Marguerite Kilvert affirmed on 10 February 2016  and Exhibit 1 in the Application;
  1. (b)
    the submissions filed by the Applicant and the Second Respondent in relation to the Application; and
  1. (c)
    separately:
  1. (i)
    the transcript of the hearing of the Application on 10 February 2016 recording the reasons of the Land Court (from T1-64 to T1-70);
  1. (ii)
    the transcript of the hearing of the Application on 10 February 2016 from T1-1 to T1-63; and
  1. (iii)
    subject to order 4, the restricted parts of the transcript of the hearing of the Application on 10 February 2016;

be provided, together with the Decision, to The Honourable The Minister for the Department of Natural Resources and Mines.

  1. That Exhibit TP2 to the Affidavit of Toby Prior sworn 8 February 2016 and filed 8 February 2016 and the restricted parts of the transcript referred to in order 3(c)(iii) be provided to the Minister in a sealed envelope marked “restricted and only to be opened by the Minister and any persons delegated by the Minister for the purpose of considering the application for the grant of MLA 70434” and is otherwise to be kept restricted by all parties including the Minister.

PA SMITH

LAND COURT MEMEBER

Footnotes

[1]  (2015) QSC 107.

Close

Editorial Notes

  • Published Case Name:

    Byerwen Coal Pty Ltd v Colinta Holdings Pty Ltd and Glencore Coal Queensland Pty Ltd (No 2)

  • Shortened Case Name:

    Byerwen Coal Pty Ltd v Colinta Holdings Pty Ltd (No 2)

  • MNC:

    [2016] QLC 9

  • Court:

    QLC

  • Judge(s):

    Member Smith

  • Date:

    10 Feb 2016

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

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